[Federal Register: August 11, 2005 (Volume 70, Number 154)]
[Rules and Regulations]
[Page 46768-46770]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au05-14]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 242
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 100
Subsistence Management Regulations for Public Lands in Alaska,
Subpart D; Seasonal Adjustment--Copper River
AGENCIES: Forest Service, USDA; Fish and Wildlife Service, Interior.
ACTION: Seasonal adjustment.
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SUMMARY: This provides notice of the Federal Subsistence Board's in-
season management action to protect sockeye salmon escapement in the
Copper River, while still providing for a subsistence harvest. The
revised fishing schedule for the Chitina Subdistrict of the Copper
River will provide an exception to the Subsistence Management
Regulations for Public Lands in Alaska, published in the Federal
Register on March 21, 2005. Those regulations established seasons,
harvest limits, methods, and means relating to the taking of fish and
shellfish for subsistence uses during the 2005 regulatory year.
DATES: The fishing schedule for the Chitina Subdistrict of the Upper
Copper River District is effective July 18, 2005, through September 17,
2005.
FOR FURTHER INFORMATION CONTACT: Thomas H. Boyd, Office of Subsistence
Management, U.S. Fish and Wildlife Service, telephone (907) 786-3888.
For questions specific to National Forest System lands, contact Steve
Kessler, Subsistence Program Manager, USDA--Forest Service, Alaska
Region, telephone (907) 786-3592.
SUPPLEMENTARY INFORMATION:
Background
Title VIII of the Alaska National Interest Lands Conservation Act
(ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the
Interior and the Secretary of Agriculture (Secretaries) implement a
joint program to grant a preference for subsistence uses of fish and
wildlife resources on public lands in Alaska, unless the State of
Alaska enacts and implements laws of general applicability that are
consistent with ANILCA and that provide for the subsistence definition,
preference, and participation specified in Sections 803, 804, and 805
of ANILCA. In December 1989, the Alaska Supreme Court ruled that the
rural preference in the State subsistence statute violated the Alaska
Constitution and, therefore, negated State compliance with ANILCA.
The Department of the Interior and the Department of Agriculture
(Departments) assumed, on July 1, 1990, responsibility for
implementation of Title VIII of ANILCA on public lands. The Departments
administer Title VIII through regulations at Title 50, Part 100 and
Title 36, Part 242 of the Code of Federal Regulations (CFR). Consistent
with Subparts A, B, and C of these regulations, as revised January 8,
1999 (64 FR 1276), the Departments established a Federal Subsistence
Board to administer the Federal Subsistence Management Program. The
Board's composition includes a Chair appointed by the Secretary of the
Interior with concurrence of the Secretary of Agriculture; the Alaska
Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional
Director, National Park Service; the Alaska State Director, Bureau of
Land Management; the Alaska Regional Director, Bureau of Indian
Affairs; and the Alaska Regional Forester, USDA Forest Service. Through
the Board, these agencies participate in the development of regulations
for Subparts A, B, and C, which establish the program structure and
determine which Alaska residents are eligible to take specific species
for subsistence uses, and the annual Subpart D regulations, which
establish seasons, harvest limits, and methods and means for
subsistence take of species in specific areas. Subpart D regulations
for the 2005 fishing seasons, harvest limits, and methods and means
were published on March 21, 2005 (70 FR 13377). Because this action
relates to public lands managed by an agency or agencies in both the
Departments of Agriculture and the Interior, identical closures and
adjustments would apply to 36 CFR part 242 and 50 CFR part 100.
The Alaska Department of Fish and Game (ADF&G), under the direction
of the Alaska Board of Fisheries (BOF), manages sport, commercial,
personal use, and State subsistence harvest on all lands and waters
throughout Alaska. However, on Federal lands and waters, the Federal
Subsistence Board implements a subsistence priority for rural residents
as provided by Title VIII of ANILCA. In providing this priority, the
Board may, when necessary, preempt State harvest regulations for fish
or wildlife on Federal lands and waters.
These actions are authorized and in accordance with 50 CFR
100.19(d-e) and 36 CFR 242.19(d-e).
Copper River--Chitina Subdistrict
In December 2001, the Board adopted regulatory proposals
establishing a new Federal subsistence fishery in the Chitina
Subdistrict of the Copper River. This fishery is open to Federally
qualified users having customary and traditional use of salmon in this
Subdistrict. The State conducts a personal use fishery in this
Subdistrict that is open to all Alaska residents.
Management of the fishery is based on the numbers of salmon
returning to the Copper River. A larger than predicted salmon run will
allow additional fishing time. A smaller than predicted run will
require restrictions to achieve upriver passage and spawning escapement
goals. A run that approximates the pre-season forecast will allow
fishing to proceed similar to the pre-season schedule with some
adjustments made to fishing time based on in-season data. Adjustments
to the preseason schedule are expected as a normal function of an
abundance-based management strategy. State and Federal managers,
reviewing and discussing all available in-season information, will make
these adjustments.
While Federal and State regulations currently differ for this
Subdistrict, the Board indicated that Federal in-season management
actions regarding fishing periods were expected to mirror State
actions. The State established a preseason schedule of allowable
fishing periods based on daily projected sonar estimates. The preseason
schedule was intended to distribute the harvest throughout the salmon
run and provide salmon for upriver subsistence fisheries and the
spawning escapement. During July 4-July 10, there were 55,740 salmon
counted past the Miles Lake sonar. The preseason projection for this
period was 48,848 salmon; therefore, an excess of 6,892 salmon passed
the sonar during this period which will allow for increased fishing
time during the eighth open period. Copper River sockeye salmon
migratory timing and the previous 5-year average harvest and
participation rates indicate sufficient numbers of salmon available to
allow 168 hours of fishing time during the week of July 18-July 24.
Depending on actual numbers of salmon passing the Miles Lake sonar,
future openings may be increased or decreased accordingly.
[[Page 46769]]
Data from the sonar indicate that there are now sufficient salmon in
the Copper River to allow additional fishing time in the Chitina
Subdistrict, provide for the needs of upper Copper River users, and
achieve spawning escapement objectives. Shown below are the fishing
schedule openings for the Chitina Subdistrict of the Copper River:
Monday, July 11, 12:01 a.m.-Sunday, July 17, 11:59 p.m.
Monday, July 18, 12:01 a.m.-Sunday, July 24, 11:59 p.m.
Monday, July 25, 12:01 a.m.-Friday, September 30, 11:59 p.m.
State personal use and Federal subsistence fisheries in this
Subdistrict close simultaneously by regulation on September 30, 2005.
No deviation from this date is anticipated.
The Board finds that additional public notice and comment
requirements under the Administrative Procedure Act (APA) for these
adjustments are impracticable, unnecessary, and contrary to the public
interest. Lack of appropriate and immediate conservation measures could
seriously affect the continued viability of fish populations, could
adversely impact future subsistence opportunities for rural Alaskans,
and would generally fail to serve the overall public interest.
Therefore, the Board finds good cause pursuant to 5 U.S.C. 553(b)(3)(B)
to waive additional public notice and comment procedures prior to
implementation of these actions and pursuant to 5 U.S.C. 553(d)(3) to
make this rule effective as indicated in the DATES section.
Conformance With Statutory and Regulatory Authorities
National Environmental Policy Act
A Final Environmental Impact Statement (FEIS) was published on
February 28, 1992, and a Record of Decision on Subsistence Management
for Federal Public Lands in Alaska (ROD) was signed April 6, 1992. The
final rule for Subsistence Management Regulations for Public Lands in
Alaska, Subparts A, B, and C (57 FR 22940, published May 29, 1992),
implemented the Federal Subsistence Management Program and included a
framework for an annual cycle for subsistence hunting and fishing
regulations. A final rule that redefined the jurisdiction of the
Federal Subsistence Management Program to include waters subject to the
subsistence priority was published on January 8, 1999 (64 FR 1276.)
Section 810 of ANILCA
The intent of all Federal subsistence regulations is to accord
subsistence uses of fish and wildlife on public lands a priority over
the taking of fish and wildlife on such lands for other purposes,
unless restriction is necessary to conserve healthy fish and wildlife
populations. A Section 810 analysis was completed as part of the FEIS
process. The final Section 810 analysis determination appeared in the
April 6, 1992, ROD, which concluded that the Federal Subsistence
Management Program, under Alternative IV with an annual process for
setting hunting and fishing regulations, may have some local impacts on
subsistence uses, but the program is not likely to significantly
restrict subsistence uses.
Paperwork Reduction Act
The adjustment and emergency closures do not contain information
collection requirements subject to Office of Management and Budget
(OMB) approval under the Paperwork Reduction Act of 1995.
Other Requirements
The adjustments have been exempted from OMB review under Executive
Order 12866.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires preparation of flexibility analyses for rules that will have a
significant effect on a substantial number of small entities, which
include small businesses, organizations, or governmental jurisdictions.
The exact number of businesses and the amount of trade that will result
from this Federal land-related activity is unknown. The aggregate
effect is an insignificant economic effect (both positive and negative)
on a small number of small entities supporting subsistence activities,
such as boat, fishing gear, and gasoline dealers. The number of small
entities affected is unknown; however, the effects will be seasonally
and geographically limited in nature and will likely not be
significant. The Departments certify that the adjustments will not have
a significant economic effect on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act. Under the Small
Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.),
this rule is not a major rule. It does not have an effect on the
economy of $100 million or more, will not cause a major increase in
costs or prices for consumers, and does not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises.
Title VIII of ANILCA requires the Secretaries to administer a
subsistence preference on public lands. The scope of this program is
limited by definition to certain public lands. Likewise, the
adjustments have no potential takings of private property implications
as defined by Executive Order 12630.
The Service has determined and certifies pursuant to the Unfunded
Mandates Reform Act, 2 U.S.C. 1502 et seq., that the adjustments will
not impose a cost of $100 million or more in any given year on local or
State governments or private entities. The implementation is by Federal
agencies, and no cost is involved to any State or local entities or
tribal governments.
The Service has determined that the adjustments meet the applicable
standards provided in Sections 3(a) and 3(b)(2) of Executive Order
12988, regarding civil justice reform.
In accordance with Executive Order 13132, the adjustments do not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment. Title VIII of ANILCA precludes the State from
exercising subsistence management authority over fish and wildlife
resources on Federal lands. Cooperative salmon run assessment efforts
with ADF&G will continue.
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we
have evaluated possible effects on Federally recognized Indian tribes
and have determined that there are no effects. The Bureau of Indian
Affairs is a participating agency in this rulemaking.
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, or
use. This Executive Order requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. As these actions are
not expected to significantly affect energy supply, distribution, or
use, they are not significant energy actions and no Statement of Energy
Effects is required.
Drafting Information
Bill Knauer drafted this document under the guidance of Thomas H.
Boyd, of the Office of Subsistence Management, Alaska Regional Office,
U.S. Fish and Wildlife Service, Anchorage, Alaska. Taylor Brelsford,
Alaska State Office, Bureau of Land Management; Rod Simmons, Alaska
Regional Office, U.S. Fish and Wildlife Service; Nancy Swanton, Alaska
[[Page 46770]]
Regional Office, National Park Service; Dr. Glenn Chen, Alaska Regional
Office, Bureau of Indian Affairs; and Steve Kessler, USDA-Forest
Service, provided additional guidance.
Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C.
3551-3586; 43 U.S.C. 1733.
Dated: July 22, 2005.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
Dated: July 22, 2005.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 05-15885 Filed 8-10-05; 8:45 am]
BILLING CODE 3410-11-P